Levett and Jabaut
[2018] FCCA 284
•13 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEVETT & JABAUT | [2018] FCCA 284 |
| Catchwords: FAMILY LAW – Parenting – parties unable to agree where child should commence secondary schooling – first term of secondary school commenced – child missing first week of secondary school – parents had agreed parenting orders in 2008 – consent orders provided for parties to attend mediation in event unable to agree schooling – parties knew that they were unable to agree school issue for child by late 2016 – father suggests mechanism for selecting range of schools and narrowing selection to those which the parties and child might attend and inspect – desultory attempts to resolve impasse on schooling – mother twice refuses to attend mediation – mother unilaterally enrols child in secondary school of her choosing being school of child’s preference – mother does not disclose to proposed school existence of consent orders – father notifies school of orders – school withdraws enrolment – mother brings application on Christmas eve – seeks abridgment – abridgment refused by Registrar – mother seeks review of Registrar’s decision – application for review listed early January 2018 – parties fail to attend in person – matter adjourned – scarcity and waste of judicial resources – secondary school term commences – urgency of interim application – orders for enrolment made – orders made for post separation parenting and reportable family counselling. |
| Legislation: Family Law Act 1975, ss.4, 4AB 60B, 60C, 60CA, 60CC, 60CD, 60D, 60G, 60I, 61B, 61C, 65D, 69ZN, 69ZQ, 69ZT |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Bondelmonte v Bondelmonte (2017) 341 ALR 179 Cowling & Cowling (1998) 22 Fam LR 776 Howell & Garson [2016] FCCA 2635 Howell & Garson (No.3) [2017] FCCA 3343 Low & Chapman [2017] FCCA 3102 | ||
| Applicant: | MS LEVETT | |
| Respondent: | MR JABAUT |
| File Number: | MLC 3801 of 2008 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 5 February 2018 |
| Date of Last Submission: | 5 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 13 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dellidis |
| Solicitors for the Applicant: | Berger Kordos Lawyers |
| Counsel for the Respondent: | Mr Hoult |
| Solicitors for the Respondent: | Farrar Gesini Dunn Lawyers |
THE COURT ORDERS THAT
By 4:00pm on Thursday, 15 February 2018, the parties sign all documents, pay all fees and do all things as may be necessary to enrol the child X, born (omitted) 2005 (the child), at (omitted) School, (omitted) (the school).
In default of compliance by either party with paragraph (1) of this order, the consent of the party in default to such enrolment is dispensed with and the party in compliance with this order shall forthwith:
(a)seek enrolment of the child at the school;
(b)be at liberty to supply a copy of this order to the school.
The applicant and respondent engage in a Parenting Program and as soon as possible provide a certificate of completion to the other party’s solicitor.
Forthwith, the applicant and respondent arrange and attend reportable family therapeutic counselling with a counsellor as agreed and, failing agreement, with either Mr B or Ms J of (omitted), with the costs of the counselling and report to be shared equally between the parties.
The applicant and respondent are to ensure that the children, X and Y born (omitted) 2002 and (omitted) 2005, attend therapeutic counselling as directed by the counsellor.
By 4.00 pm on 10 December 2018 the applicant is to file and serve an affidavit annexing the report of the family therapeutic counsellor.
The Interim Hearing listed for 25 February 2018 be vacated.
By Friday, 30 November 2018, the parties attend mediation.
All applications for final orders be adjourned for hearing before Judge A Kelly on 4 February 2019 at 10.00 am as a 2 day hearing.
By 4.00 pm on 17 December 2018, the applicant file and serve upon the respondent:
(a)any amended application setting out with precision the Orders to be sought;
(b)the affidavits of evidence in chief of all witnesses including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).
By 4.00 pm on 18 January 2019, the respondent file and serve upon the applicant:
(a)any amended response setting out with precision the Orders to be sought;
(b)the affidavits of evidence in chief of all witnesses including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).
By 4.00pm on 25 January 2019, the applicant file and serve any affidavit in reply.
Other than as provided in these orders, no party may file or rely upon any further evidence without leave of the court.
By 4.00 pm on 31 January 2019, the parties file and serve an outline of case document respecting parenting issues including the following:
(a)a list of the documents to be relied upon;
(b)a brief chronology;
(c)an outline of contentions with respect to:
(i)whether the presumption of equal shared parental responsibility applies (s 61DA);
(ii)the considerations relevant to equal time and substantial and significant time (s 65DAA);
(iii)each of the considerations relevant to determining the best interests of X (s 60CC factors);
(iv)other relevant considerations pursuant to the Family Law Act 1975 (Cth);
(d)a statement of precise orders sought.
IT IS NOTED that publication of this judgment under the pseudonym Levett & Jabaut is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3801 of 2008
| MS LEVETT |
Applicant
And
| MR JABAUT |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons explain orders that are made in a parenting application in which the applicant mother sought urgent interim relief that the parties’ daughter, X, be enrolled at school in order that she may begin her secondary education.
The mother seeks that the child be enrolled at (omitted) High School. The father seeks that X be enrolled at (omitted) School, (omitted). The parties live in (omitted) and (omitted) respectively.
In the circumstances in which the application comes before me, X has not yet commenced her secondary education. The matter is urgent because secondary education for term one, 2018 has now commenced. The fact that arrangements have not been made for X to commence her secondary education lies squarely at the feet of her parents.
In substance, I have decided that it is in X’s best interests that she commences secondary education at (omitted) School. Orders are made to facilitate that this occur without delay. The matter is otherwise set down for trial, with orders for the parties to undertake a post-separation parenting program and for reportable family therapy.
Procedural history
On 24 June 2008, consent orders were made respecting the parties’ parenting arrangements. By those consent orders, the parties were agreed that they would have equal shared parental responsibility for the two children of their relationship, Y born (omitted) 2002 and X born (omitted) 2005.
Whilst an extensive range of other orders were agreed in 2008, of particular relevance is that the parties agreed in a notation which provided for the parties to attend mediation if they were unable to agree on proposed changes with respect to their children’s schooling.
Throughout the whole of the period 2008 to 2018, the applicant has lived in (omitted), whilst the respondent has lived in (omitted).
On 18 December 2017, the applicant mother filed an initiating application seeking orders for the enrolment of X at (omitted) High School. The applicant also sought, but was refused, a request for an urgent listing of the application. The applicant mother then applied for a review of the Registrar’s decision refusing the abridgment. By her second affidavit, the applicant deposed that X would be disadvantaged if the interim hearing was not listed urgently.
The application for review was listed for hearing on 9 January 2018. On that date, each of the parties was represented by their solicitors. For reasons that were not explained, both parties chose not to attend court. The matter was, as a result, adjourned for an interim contested hearing on 5 February 2018. The manner in which the parties conducted themselves resulted in the wastage of scarce court resources and, no doubt, avoidable expense to themselves. Perhaps more significantly, their failure to attend was emblematic of an entrenched attitude that it was for others to resolve a problem of their making.
On 23 January 2018, the respondent father filed a response in which he sought interim relief that, inter alia, the parties sign all documents and do all things necessary to enrol X at (omitted) School. The father’s response sought a series of other parenting orders which are unnecessary to address in this interim application.
The mother swore three affidavits and the father swore one. However, it was in the third affidavit that the applicant presented her evidence on the issues that were of central relevance to the interim application.
Ms Dellidis, counsel for the applicant, presented the evidence commendably. Particular reliance was placed upon matters which were agreed and, in addition, those which had not been contradicted by the respondent. One difficulty in that approach was that, as noted above, the applicant’s substantive evidence only emerged in reply. In the approach taken by the applicant, the respondent was not afforded an opportunity to address the applicant’s substantive case. The court cannot determine an interim application by preferring the evidence of the party who has had the ‘last word’. Doing the best that can be done on the available material, I set out the following history.
Evidence
The applicant mother, aged 43 years, is employed as a (occupation omitted) working in (omitted).
The respondent father, aged 41 years, works as a (occupation omitted).
The parties commenced a de facto relationship in about (omitted) 2001 and separated in early 2005. There are two children of the relationship, Y and X. During their primary education, each of the children attended (omitted) Primary School.
The applicant re-partnered with Mr S, however, those parties are now separated and were divorced in 2016.
The applicant resides in rented accommodation in (omitted), including with X during the alternate weeks in which the child resides with her. Also residing with the applicant are two children of a subsequent relationship of the applicant, A born (omitted) 2009 and B born (omitted) 2010.
The respondent has remarried and has another child, a daughter, who is now aged six years. The respondent lives in a four bedroom home in (omitted). Since (omitted) 2017, the eldest child, Y, has lived primarily with the father. By agreement of the parties, Y is now attending (omitted) School, which is located between (omitted) and (omitted). The applicant says that there are no ongoing disagreements concerning Y’s current living arrangements.
The respondent deposed to a conversation held in early 2018 with the applicant’s ex-partner, Mr S. The respondent swore (and the applicant contested), that the children of the applicant’s relationship with Mr S, A and B, had been living with Mr S since Christmas 2017 by reason of the applicant failing to comply with court orders, including not providing him with information as to who was caring for the children when she was not at home. The mother said that the children continue to live with her and spend time with Mr S five nights per fortnight. The respondent deposed of being told by Mr S (and the mother did not directly contradict), that A and B were often left in the care of X or a 15 year old girl.
The respondent also recounted that X had often reported to witnessing instances of family violence between the applicant and Mr S. The respondent said that the applicant had previously been charged with assault and that there were multiple intervention orders in place as a result of incidents which occurred between Mr S and herself. By her reply affidavit, the applicant said only that there were instances of family violence perpetrated against her and that she was no longer in a relationship with Mr S.
From June 2008 until November 2017, X has lived with the applicant and the respondent on a week about basis.
Since the commencement of X’s primary education, during the weeks when she lives with the respondent, he has driven her to school each morning and collected her from school each afternoon. This has involved the respondent driving to and from (omitted) to (omitted), in each of those weeks where X is living with her father.
During the weeks that she has been living with her father, X has participated in a (hobby omitted) in (omitted). In addition, her father has transported her to and from her sporting commitments mid-week and on weekends. The respondent detailed the living and holiday arrangements including that the children are actively involved in the choice of their meals, particularly when they have international cuisine once per week. He also detailed the positive way in which X interacts with her brother and her younger stepsister.
The respondent is actively involved in supervising X’s homework on the nights that she stays in (omitted). The respondent has concerns that X is inattentive to her homework in the weeks when she stays with her mother. The respondent has attempted to discuss these matters with the applicant but she has stated ‘it is not my responsibility to stand over her shoulder and make sure it’s done’ and further, ‘she prefers to do her homework with you.’ The respondent described an exchange with the applicant in mid-April 2017, when he had asked the applicant to send him a picture of X’s homework which was due the following day. During a series of exchanges by text message, the applicant replied that she was not at home with X and that she would ‘do it tomorrow.’ The respondent said that X’s primary school teacher has advised him that X has taken many sick days on occasions when either homework was due or tests had been scheduled. The respondent said that X did not take sick days off school whilst she was in his care. The applicant’s reply affidavit did not respond to these matters. There is some reason to observe, albeit for the purposes of an interim hearing, that the respondent may be more actively interested in the child’s education than the applicant is.
There was a comparative paucity of evidence from the applicant in relation to the nature of X’s living arrangements in (omitted).
X’s behaviour deteriorated in 2016. In consequence of this deterioration, the respondent made arrangements for X to attend a psychologist, Dr R, of (omitted) Psychology. X attended six sessions with Dr R from August 2016. The respondent took X to, and attended at, each of those sessions. Despite requests, the applicant did not attend one of those sessions (see below). Although the applicant deposed that X ‘did not respond positively to Dr R,’ the applicant otherwise did not contradict or address the respondent’s evidence on this topic.
The consultations with Dr R included one which was arranged following an incident in November 2016 when X had apparently threatened self-harm. The respondent immediately made arrangements for X to consult Dr R the following day. In a text message addressing this proposed appointment, the applicant responded in part: ‘I’m thinking family therapy is a better option than X seeing Dr R. I’m not sure that Dr R represents any value in this situation; she said she is not qualified to advise or help with matters around care arrangements or what is in the best interests of the child etc.’ The respondent had not sought to engage Dr R to discuss parenting arrangements or to mediate disputes, but had sought her ongoing support for X based on her behaviour and threats of self-harm. While the present hearing was an interim application, the respondent’s account of this matter seems inherently plausible.
The respondent recounted other episodes of escalating conflict in December 2016 in which the parties had exchanged text messages as to how they might best parent X at that stage of the development. The respondent suggested in one text that they should give consideration to establishing some non-negotiable common rules and foundations across both households, including ‘areas such as bedtime, phone, iPad usage, what apps they can have, homework – timing and duration, age-appropriate TV, movie viewing, and any other areas you like to put forward to.’ The applicant responded that she did not completely agree with the respondent’s suggested approach, concluding ‘you have no evidence or experience in this matter so I would appreciate you not ringing me to give me your opinion.’ Again, the applicant’s reply affidavit did not address these matters.
By letter dated 8 December 2016, Dr R wrote to the general practitioner in (omitted) who had referred X for psychological intervention. Dr R found that X’s difficulties had occurred in the context of the dissolution of the applicant’s second marriage and the associated discord and increased conflict between the applicant and her previous partner, coupled with the respondent’s recent remarriage.
Dr R recorded that even in December 2016 there was conflict regarding X’s secondary school placement.
Dr R stated that the respondent had regularly attended sessions with X. Dr R had spoken briefly to the applicant by telephone.
Dr R emphasised the importance of certainty and predictability at both the (omitted) and (omitted) homes. She recommended that the parties consider attending family therapy as soon as possible. Family therapy was, I note, something that the applicant thought would be beneficial. The respondent was likewise supportive. In the period, December 2016 to the present date, the parties have not arranged it.
Dr R found that X presented as a friendly and intelligent girl who described with reasonable insight the issues including her changing behaviour, which she found to be ‘an effective way to communicate distress and displeasure to her parents.’ X was found to have engaged well in the six therapeutic sessions she had attended, but Dr R found that X continued to experience difficulties regulating her emotions in the context of the numerous stressors to which she was exposed. Dr R opined that X would benefit from continued psychological intervention. It seems implicit that the parties have not yet addressed the need for this form of care either.
The respondent described a history of attempts that were made respecting various parenting arrangements for X in the period from January 2017 to December 2017. Much of the respondent’s evidence was extracted from mobile phone text messages (which the respondent said he would produce if he was required to do). In the course of those communications, the following occurred in January 2017:
(a)the applicant contacted the respondent informing him of her plans to move from (omitted) to (omitted) (being a further 45 minutes distant from (omitted) and also from the respondent’s residence). By her reply affidavit, the applicant said that she now had no plans to move to (omitted);
(b)the parties discussed secondary schooling arrangements for Y. In the context of discussing Y’s secondary schooling, the parties agreed that sending him to a state school had been a bad decision on their parts;
(c)as to Y’s schooling, the applicant stated by text message that she and Y had visited the (omitted) School on (omitted) and the applicant had observed it was a co-educational facility ‘so X could go there too.’ The applicant’s text also explored sending Y to (omitted) school;
(d)in the course of this dialogue, the applicant observed that the children ‘will make friends wherever they go; they are very social. We’re just going to have to make this work’.
The applicant did not respond directly to the respondent’s evidence of these text messages or challenge the veracity of his account.
As concerned Y’s decision to live primarily with the respondent, the applicant challenged the respondent’s evidence that Y had said ‘mum told me to choose where I want to live, so I said with you.’
The events which became the catalyst for the present application began in at least early 2017. At about the time that Y decided to live primarily with his father, the parties also sought to make long-term decisions concerning X’s living arrangements, her participation in extracurricular activities and her high school enrolment.
Initially, the applicant’s position was that X should live primarily with the applicant, attend (omitted) High School and engage in extracurricular activities in (omitted). The respondent contested that proposal, seeking that: X’s living arrangements remain as they had been agreed in 2008; X be enrolled in a mutually convenient location; X continue to participate in extracurricular activities proximate to both the mother and the father’s respective residences.
In February 2017, the respondent tried, unsuccessfully, to arrange for the applicant to attend mediation. He deposed, and the applicant did not contest, that the applicant refused to attend mediation.
On 1 March 2017, the parties exchanged a series of text messages in which the applicant recognised the need to make arrangements for X’s secondary schooling ‘ASAP.’ The father proposed that, as with the educational arrangements that had been made by agreement for Y, the parties should agree upon a secondary school for X which was situated at an approximate midpoint between the parties’ homes. The respondent’s text stated in part:
I’m happy to explore say a top 5 – 10 & then narrow it down to 3 – 5 that we can go & inspect, as I offered you the opportunity with Y when he changed schools.
The applicant’s response linked the applicant’s proposal for changed living arrangements stating:
If she is going to live with me for the most part it’s only reasonable that her school be completed locally . . . urgent decisions need to be made around schooling for next year.
Again, the respondent attempted, unsuccessfully, to persuade the applicant to attend mediation.
On 20 March 2017, a family dispute resolution practitioner issued a certificate pursuant to s 60I of the Family Law Act 1975 (Cth) (Act). As to this, I note that the applicant criticised the respondent for having failed to initiate a parenting proceeding in March 2017.
In May 2017, unbeknown to the respondent, the applicant had signed and submitted a 2018 school transition and placement form, indicating two preferences for X's High School enrolment. In contrast with the present interim application and the applicant’s text message above, the applicant expressed preferences for X’s secondary schooling (being either (omitted) High School or (omitted) High School).
The 2018 school transition and placement form (which was exhibited to the respondent’s affidavit), was notable for the fact that while the applicant had ticked the box by which she certified that all of the information in that form was correct, she had not ticked the immediately preceding box which provided for her to attach Family Court orders and parenting plans. An available inference, which I draw, is that the applicant deliberately abstained from informing (omitted) High School of that preference by reason that the notation to the parties consent order would have alerted a prospective secondary school to the need for the consent of both parties to the enrolment.
On 2 November 2017, the respondent contacted (omitted) High School and was notified that X had been enrolled at that school. The applicant had enrolled X without the respondent’s consent. The respondent also ascertained that in May 2017 the applicant had signed and submitted the school transition and placement 2018 form.
On 3 November 2017, the respondent notified (omitted) High School of the parties’ final consent orders and informed the school that he had neither signed the placement form nor provided his consent to X’s enrolment at (omitted) High School. X’s enrolment from that High School was withdrawn by the school.
Although X has declined to speak to her father or to spend time with him since November 2017, this has occurred in the circumstances that the selection of a secondary school has not been resolved and that X completed primary school in 2017.
In (omitted) 2017, the respondent travelled with both X and Y to spend time in Brisbane with his family; in particular, to celebrate his brother’s 40th birthday. In the course of that three-day holiday, X expressed her enjoyment at having spent time with her cousins and that she wished she was able to do it more often.
Upon return from that holiday, it appears that the applicant disclosed to X that the respondent had not given his consent to her enrolment at (omitted) High School. Upon X making this discovery, she told the respondent in effect ‘you won’t agree to (omitted) High School so I’m not coming to see you.’ The applicant did not address the respondent’s evidence on this topic. Instead the applicant’s reply affidavit suggested that X and the respondent have had a difficult relationship. She also deposed (for the first time by way of reply affidavit), that ‘the parenting style of the respondent, and the intimidation and fear, are the primary reasons she does not want to live with him and has not [sic] for a long period of time.’ Notably, the applicant’s first and second affidavits contained no reference to circumstances of this kind.
The closest that the applicant’s first or second affidavit came to suggesting the relationship between X and her father was a matter of difficulty was as follows. The applicant deposed that X’s primary school was a feeder school to (omitted) High School and that the respondent was aware of X’s wishes to attend that school. Separately, the applicant deposed that the respondent had refused to consent to her enrolment there. At the same time, the applicant acknowledged that the respondent had variously proposed that X should attend (omitted) School, (omitted) School (with her brother), (omitted) School or (omitted) High School but that the applicant did not agree with any of those schools and reiterated X’s expressed view that she did not want to attend those schools. The applicant’s first and second affidavits stood in stark contrast to the third affidavit in relation to the suggestion that the respondent’s parenting style was a matter in issue or that his relationship with X was one of intimidation and fear. Such serious allegations should not have emerged for the first time in reply on the eve of the hearing.
The mother deposed that (omitted) High School was a 10 to 15 minute drive from her home. During the course of oral submissions, it was also suggested that X would be able walk to and from school.
The respondent gave some evidence of his dialogue with X’s primary school teacher and enrolment officer, which he relied upon as supporting a view that it was not in X’s best interests to attend (omitted) High School. Although he recounted that some of X’s primary school friends were considered to behave poorly such that they had been separated from X (and she from them), it was conceded in oral argument that this should, objectively, be seen as a neutral factor.
More importantly, the respondent recounted that X’s primary school teacher had said that ‘X is the worst offender for not doing her homework on time or properly and that she is late, often accompanied by a note.’ Contrastingly, X’s 2016 semester 1 report, which was tendered at the hearing, spoke of X as being an alert and enthusiastic member of her (Grade 5) class who spoke confidently and worked independently on tasks. X was described as well organised and as taking care with the presentation of her work. She was described as a responsible member of the student representative council. However, X’s 2016 semester 2 report was not tendered at the hearing. In addition, a copy of X’s 2017 semester 2 report was exhibited to the respondent’s affidavit. Regrettably, the page containing the summary of X’s overall progress was omitted.
The respondent gave evidence of the geographical features of (omitted) School, including that it was located approximately midpoint between the parties’ respective homes (a 25 minute drive from (omitted) home and 21 minute drive from the (omitted) home). (omitted) School is close to (omitted) train station and, by taking a one stop train journey to (omitted) station, would enable X (when she is of a suitable age) to travel by train to the applicant’s home. The applicant contested the suitability of (omitted) School on the basis that it was ‘not located proximate to either the respondent or me.’
(omitted) School admissions registrar has confirmed that the school will accept a late enrolment for X even if it is to be made after the commencement of the school year.
There is no evidence that, in contrast with the approach employed with Y and as suggested by the respondent, the parties have actually taken X to perhaps two or three schools where X could become familiar with the amenity of those schools. Her stated opposition to attending any school other than (omitted) High School has occurred in a vacuum. She has not had an opportunity to explore any other options.
While the respondent had exhibited a copy of Dr R’s 2016 report, there was no more recent expert evidence available for the determination of this urgent interim application. The failure to take the step of procuring such evidence before the application was made is a matter of regret. It is to the parties discredit that they have failed to secure such evidence, despite recognising their impasse in respect to school enrolment for X for a period of over 14 months.
By way of overview, the parties have long recognised the need to address urgently the selection and enrolment of X at a secondary school. Thus far, they have failed to advance the matter beyond recognising that they are in disagreement. The respondent has actively attempted to make arrangements to address this and other issues. The applicant has twice blocked mediation as a possible means of achieving resolution. On some of the evidence, it seems to be the case that the applicant regards (omitted) High School as more convenient to her. Despite the fact that the parties share week about parenting, seeks to she justify that preference on the basis that X spends more time in (omitted) than in (omitted). It also seems to be the case that although Dr R has advocated therapy both for the family and for X, neither of those options has been pursued. Presently, there is some reason to conclude that the applicant sees it as easier to yield to X’s insistent preference than to grapple with her parenting responsibility of at least attempting to decide what is truly in X’s best interests.
Parenting orders
Ms Dellidis assisted the court with detailed submissions, and the parties were agreed upon the applicable principles. Schooling is a major long term issue which should ordinarily be decided jointly by the parents when they share equal parenting responsibility: ss 4, 64B(2)(i). Parents of a child under the age of 18 years have parental responsibility for that child. This responsibility embraces all the duties, powers and responsibilities that parents have for their child: ss 61B, 61C.
Part VII of the Act, which concerns the subject Children, is arranged in 16 Divisions comprising ss 60–70Q. Section 65D provides that the court may make such parenting orders as it thinks proper. In Bondelmonte v Bondelmonte (2017) 341 ALR 179, the High Court said of the discretion conferred by s 65D at [8]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant . . . They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
For those reasons, the court is required to actively direct, control and manage the conduct of child-related proceedings: sub-s 69ZN(4), (6).
The objects of Part VII stated in s 60B(1) include that the best interests of children are met by protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60B(1)(b). The principles underlying those objects recognise the manifold rights of children with respect to their parents: s 60B(2). Properly construed, s 60B provides context which indicates the legislative intention and purpose, and operates as an aid to construction, of Part VII: Maldera & Orbel [2014] FamCAFC 135, [75] (Ainslie-Wallace, Ryan & Aldridge JJ).
Interim orders
The principles in Goode v Goode (2006) 36 Fam LR 422 apply to the determination of an interim application for parenting orders. There the Full Court drew attention to the amendments to Part VII of the Act, which took effect from 1 July 2006, the objects of Part VII and the mandatory requirement expressed in s 60CC that the court must have regard – as the paramount consideration – to the best interests of the child in deciding parenting orders: (2006) 36 Fam LR 422, [7]-[10]. It is because the paramount consideration is the best interests of the child that many of the otherwise stringent rules of evidence do not apply in child-related proceedings: s 69ZT.
Consideration was then given to the principles applicable to interim parenting proceedings: Goode, [66]-[82]. The Full Court, recognising that interim proceedings were interlocutory in nature, confirmed as apposite the statements in Cowling & Cowling (1998) 22 Fam LR 776, that the procedure in making interim parenting orders is an abridged process such that the scope of enquiry is, of necessity, to be significantly curtailed from that which will obtain at a trial.
The following principles stated in Goode, [82] are applicable when following the legislative pathway:
In an interim case, that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)-(k) . . .
In the context of an application for interim parenting orders the court must have regard to the considerations in s 60CC(2)-(3).
Schooling
The principles applicable to the determination of a schooling dispute are well settled. As in all parenting proceedings, decisions as to schooling are to be determined having regard to the best interests of the child: ss 60CA – 60CC.
Where a schooling application is brought forward on an urgent basis, in a legal sense it is not a final order; accordingly, it is appropriate to determine the matter on the principles applicable to an interim hearing: Sheill & McMurr(No.2) [2014] FamCAFC 134, [52]-[53].
There is no legal presumption which favours a child’s primary carer choosing the relevant school that the child attends: Re G, Children’s Schooling (2000) FLC 93-025 at [29], [45], [65]; Low & Chapman [2017] FCCA 3102, [48]. Consequently there is no onus of proof cast on either party in the determination of the application.
The day-to-day reality of where a child does reside predominantly with one parent is, however, of relevance: Re G, [65]. As a general rule, it will commonly be in a child’s best interests to attend school which is close to his or her predominant place of residence: Bilz & Breugelman [2013] FamCA 578, [82] (Austin J); Re G, [92]-[93]. However, to state a general principle in that form necessarily invites attention to the anterior questions: what is the child’s predominant place of residence? What is in a child’s best interests concerning attendance at a school which, although close to one residence, is distant from the other? Where parties have agreed that they will share week about parenting, how are principles based on a predominant residence to be applied?
The parents’ interests in securing an arrangement that is convenient for them is a matter that is appropriate to take into account: Eden & Eden-Proust [2011] FamCAFC 138. This is because, while the interests of the child are required to be the paramount consideration, s 60CA does not provide that those interests are the sole consideration: AMS v AIF (1999) 199 CLR 160, [193] (Kirby J); Eden & Eden-Proust, [60]. It follows that some regard should be had to the relative inconvenience to each of the parents with respect to matters such as any necessary transport arrangements: Eden & Eden-Proust, [61]-[62].
For example, in Low & Chapman, [31], [64], Monahan J observed that to enrol a child at a school which was located at a place mid-point between the parties’ residences was perhaps ‘an obvious option’ where the parties live some distance apart. I did not understand His Honour to be suggesting any more than that such an option may be an obvious point for consideration alongside any other suitable options.
While it will ordinarily be of importance to consider the effect on the resident parent, this does not mean that the convenience of the non-resident parent is ignored: Bilz & Breugelman, [82]. Again, it may be added that the distinction between a resident and non-resident parent becomes diluted where the parties have agreed upon a week about parenting arrangement, particularly one that has been on foot and to which the parties have adhered to for some years.
The views of the children are a relevant consideration, but usually, are not determinative: s 60CC(3)(a); Bilz & Breugelman, [82], Re G, [96]. The child’s views on schooling may be of lesser weight if the child is of a young age: Sheils & McQuirk [2017] FCCA 2960, [34].
The process of evaluating competing school proposals should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where those schools are prima facie satisfactory: Bilz & Breugelman, [82]. The location of the school to the children’s residence remains an important factor: Re G, [92].
The court may be assisted in the resolution of a schooling dispute by the opinions of an expert: Shiels & McQuirk, [76]. By s 60CD(2) the court may ‘inform itself of views expressed by a child’ by a number of means, including a report given to the court by a family consultant under s 62G(2) or, subject to the Rules of Court, ‘by such other means as the court thinks appropriate’: Bondelmonte, [19].
Competing views have been expressed as to the relevance of the parties’ agreement as to how schooling should be implemented. In Eden & Eden-Proust at [48], Thackray J indicated that the existence of an agreement between parties would be an important factor. In Re G at [92], the parties’ prior agreement was held to not carry much weight.
Consideration
The court, when hearing an interim application, cannot make findings about disputed facts: Goode at [74], [81]. A conservative and cautious approach is required before making any findings at an interim hearing: Marvel & Marvel [2010] 43 Fam LR 348, [120]. This is because the conduct of an interim hearing can rarely accommodate the detailed conduct of a trial at which the parties’ evidence is subjected to scrutiny as by cross-examination. For those reasons, the approach that is taken to the affidavit evidence is essentially evaluative but necessarily conditioned by the requirement of caution: Shiels v McQuirk, [14].
Authorities which refer to Part VII as prescribing and imposing an obligation upon a court applying Part VII to follow a legislative pathway, are to be understood as emphasising that the statutory considerations as relevant to a particular case must be considered and applied as directed by the Act: Oswald & Karrington [2016] FamCAFC 152 at [47] (Ainslie-Wallace, Aldridge and Kent JJ).
In making interim decisions, the legislative pathway must be followed, notwithstanding that the court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child: Goode, [81].
Applying the considerations identified in Goode above, the parties’ competing proposals – and the pivotal issue in dispute – centred upon X’s enrolment at either of the two schools which had been selected. I have identified the agreed and uncontested facts in the course of analysing the evidence as disclosed by their various affidavits. It remains to consider the primary and additional considerations that arise upon this urgent interim application.
Ms Delledis and Mr Hoult of counsel identified in some detail the salient facts upon which their clients relied.
As concerns the expressed desire of X, I have taken that circumstance into account. I note that in Howell & Garson [2017] FCCA 3343, a schooling application, the views expressed by the daughter were that she had expressed unhappiness and stated that she would attend the school but would not participate. McNab J at [35]–[36] observed those ‘sentiments [as] expressed by a young girl transitioning to a new school have not been borne out. It is apparent that she has become fully involved, has made friends, is doing tests and is attending school.’ See also Howell & Garson [2016] FCCA 2635.
Given the circumstances, it is necessary that the court make an order for the enrolment of X to secure her secondary education since the parents cannot and will not agree upon a solution. They have had over 14 months to address the issue. The respondent has made proactive attempts to achieve resolution but has been rebuffed. This is not a case in which the court is concerned to decide upon whether a change of school is in the best interests of a child. To the contrary, the court is concerned to make an order for the child’s enrolment in secondary schooling and to do so where the first semester in 2018 has begun.
Section 60CC considerations
The court must consider the primary and additional considerations set out in sub-s 60CC(2)-(3) when determining what is in a child’s best interests including in an application of the present kind: sub-s 60CC(1).
What of the primary and additional considerations posed by ss 60CC?
Primary considerations
The primary considerations to be brought into account are twofold. First, the benefit to the child of having a meaningful relationship with both of his or her parents. Secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence: para 60CC(2)(b): see ss 4(1) (abuse); s 4AB(1) (family violence); ss 60B(1)(c), 60CC(1) (determining child’s best interests); s 60CC(2) (primary considerations).
As concerns para 60CC(2)(a), the applicant submitted that X is currently not spending time with the respondent. The circumstances in which this has occurred are described above. In short, having spent what appeared to have been a happy holiday with her father in Brisbane, X was told that the respondent had not agreed on the suggestion of (omitted) High School. X would not speak to or spend time with the respondent while that position obtained. X has spent alternate weeks at her father’s home in (omitted) since 2008. The schooling question is a parenting issue and was not the responsibility of X. The escalation of the issue of 14 months has exacerbated the problem and the parents have failed adequately to address it.
I consider that the domestic environment offered by the respondent’s home together with his involvement of the children in the selection of meals, the supervision of homework, the extracurricular activities and the proactive steps to assist X with her psychological problems are all important considerations.
As concerns para 60CC(2)(b), the applicant submitted that X had advised the applicant that the respondent was aggressive, controlling and bullying towards her. Paragraph 60CC(2)(b) of the Act addresses the need to protect a child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence. In the context of para 60CC(2)(b), the terms abuse, neglect or family violence convey distinct concepts.
The term abuse is given a defined meaning by sub-s 4(1). Applying this defined meaning to the present case, there is no suggestion of any sexual assault or sexual activity. Nor is there any basis shown for alleging that the respondent is causing the child to suffer serious psychological harm including harm caused by being subjected to or exposed to family violence. On the available evidence, nothing would seem to be further from the case. Neglect is not defined by sub-s 4(1) and is a term that should be given its ordinary meaning. There is nothing in the evidence to suggest that the respondent has neglected the care of X. To the contrary, the evidence indicates that the respondent is attempting to discharge his parenting responsibilities. Nor is there any basis for an allegation of family violence. Indeed, both parties filed notices of risk denying any such issue in this case.
I reject the applicant’s para 60CC(2)(b) submission, which I must assume was made on instructions and based upon the sworn evidence contained (for the first time) in the applicant’s reply affidavit.
Additional considerations
Additional considerations which the court must also weigh are prescribed by sub-s 60CC(3)(a)-(m). The parties identified the particular additional considerations on which they relied and I will address those below. I note that the parties did not rely upon the matters in paras 60CC(3)(h)-(m). I have separately considered each of those additional considerations and conclude that the parties correctly did not advance the present interim application on any of those bases. As concerns the several additional considerations which were relied upon by the parties, my conclusions are as follows.
Views of the child – para 66CC(3)(a)
The applicant’s affidavits stated with progressively increasing stridence that X had strongly expressed her desire to attend (omitted) High School.
Although this issue might have been more cogently explored as by the provision of an expert report (i.e. in the past 12 months), such evidence was not available.
As stated, X is aged 12 and I do attach some weight to her views.
Relationship of the child – para 60CC(3)(b)
The parties were agreed that only the nature of X’s relationship with the parents was in issue and that other relationships (such as grandparents) were not relevant. I agree.
The applicant submitted that X shared a strong relationship with the mother but that the relationship with the father had diminished over recent years. I do not accept the latter of those propositions is borne out by the evidence. True it is that X has adopted the stance that she will not speak to her father at present; however, that is a situation which is the immediate product of the parties failure to address properly the question of schooling in the preceding 14 months.
Further, there is evidence that X and her father have enjoyed a close relationship. Beyond the evidence of the child’s experience on the recent trip to Brisbane, there is the surrounding circumstance that for the whole of the period 2008 to the present, the father has been actively involved in parenting X on a week about basis. There have been no issues which have necessitated applications to court in the past decade. I have set out above the manner in which the respondent has provided parenting to his daughter. There is regrettably a comparative lack of evidence of the parenting by the applicant.
Decision-making – para 60CC(3)(c)(i)-(iii)
It was common ground that the parties have involved themselves in decision-making concerning the children since separation. I have set out the evidence above concerning the manner in which the respondent, in particular, has actively taken steps to secure X’s attendance for psychological counselling and the applicant’s comparative nonparticipation. The parties both seem to actively engage with X with respect to her extracurricular activities.
Manner of maintaining the child – para 60CC(3)(ca)
I accept the parties’ submissions that each has been responsible for maintaining X whilst she has been in their respective care.
The additional consideration to which para 60CC(3)(ca) is concerned draws attention to the extent to which each of the child’s parents has fulfilled or failed to fulfil their obligations to maintain the child.
This factor is best gleaned from the evidence that has been analysed above. To some extent the parties’ evidence was somewhat asymmetric in the sense that the respondent’s affidavit provided a body of detail on several issues that the applicant’s first two affidavits did not address and which the applicant’s reply affidavit did not deal with.
Overall, I consider this a somewhat neutral consideration.
Effects of any changes on child – para 60CC(3)(d)
The applicant submitted that the question of the child’s school would not have an impact upon the child’s circumstances. I accept that submission. The selection of a school is not going to affect any change in X’s circumstances or produce any separation from either of her parents or from any other child with whom she has been living.
Practical difficulties – para 60CC(3)(e)
The applicant focused upon the proximity of (omitted) High School to the applicant’s residence. Her evidence was that it was some five to ten minutes driving distance from her home. By contrast, the applicant gave no consideration to the distance of (omitted) Primary School from the respondent’s home in (omitted). In this respect, the applicant considered the schooling issue from a somewhat myopic perspective.
The applicant’s attitude to the matter was viewed from the perspective that X in fact spent the majority of her time at her (omitted) home, when this has not been the case for the period from 2008 to the present. I do not ignore that X has recently refused to see her father. However, the importance of practical considerations should not be transposed into some sort of self-fulfilling prophecy by reason that X has chosen not to spend time at her father’s home since late 2017. Doubtless there is a need to reset the parenting situation but this cannot be allowed to obscure an objective evaluation of X’s best interests.
The respondent has actively adhered to his parenting responsibilities on a week about basis for X over the period 2008 – 2017. While the applicant made much of the distance from her home to (omitted) School, in my view the applicant has given little consideration to the distances from the respondent’s home to (omitted) High School or (omitted) School, respectively.
The available evidence is that a trip to (omitted) High School from the applicant’s home might involve driving time of five to ten minutes and that the driving time from there to (omitted) School was in the order of 25 minutes. I do not consider those differences to pose difficulties of such significant proportions that they cannot be accommodated on a week about basis. The applicant’s submission seemed to be that the respondent had faithfully travelled from (omitted) to (omitted) on a daily basis in alternate weeks from 2008 to 2017, so there would be no reasonable impracticability in his continuing to do so.
The further additional consideration to which para 60CC(3)(b) draws attention is whether any such practical difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. I do not think that the selection of either school would substantially affect X’s right to maintain such relations.
Whilst the applicant’s submissions and evidence were focused squarely upon the proposition that it was the respondent who was being self-centred with respect to his own convenience in promoting (omitted) School over (omitted) High School, I do not accept that proposition. Equally, the applicant’s submissions and evidence indicated that she too adopted a position largely modelled upon self-interest. It was the applicant’s case that by reason of her having the primary care of two other children that the additional considerations posed by para 60CC(3)(e) should weigh in her favour. I do not accept that this is so.
I consider that the appointment of an educational institution which is at a midpoint to the respective parents residences will enhance rather than detract from X’s ability to maintain personal relations and direct contact with both of her parents on a regular basis.
Child’s needs – para 60CC(3)(f)
I accept the parties’ submission that, historically, they have cared equally for X.
While each of them question the level of care which is provided by the other in some respects, the respondent’s evidence more cogently addresses the nature of the care which he is able to, and does, provide.
Maturity, sex, lifestyle of child – para 60CC(3)(g)
As the evidence discloses, X is a 12-year-old girl currently due to commence her secondary schooling.
There is some evidence that she was particularly challenged by the turbulence of her respective parents’ lives during 2016. Regrettably, there is a lack of cogent evidence concerning her present position.
The parties’ failure to adduce that evidence reinforces the conclusion that the court must decide an urgent interim application on the best evidence which is presently available.
Conclusion
As I observed at the commencement of this application, I regarded the considerations raised on the evidence to be finely balanced. In like situations, it has been recognised that any attempt to explain the preferred outcome runs the risk of presenting a solution which appears arbitrary: Eden & Eden-Proust, [67]. This arbitrariness is a product of such an urgent interim application. The parties, being unable to agree, present two choices, and (unless, as a matter of discretion, the court concludes that neither is in the child’s best interests), the court must select one of them. The difficulties so presented are themselves a by-product of the parties’ failure to adopt pro-active steps to see that their daughter’s secondary education was properly addressed.
In summary, for over 14 months X’s parents have recognised that they had been unable to reach agreement concerning X’s secondary schooling. They had agreed as long ago as 2008 to attempt resolution of such a dispute by means of mediation. The father made at least two attempts to arrange mediation. The applicant mother was not willing to adhere to that agreed approach to resolution of their disputes.
The father put forward no less than four suggestions. For a time the mother seemed open to consider at least three options. The father also suggested a protocol for the nomination of a number of schools and the reduction of those suggestions to a smaller list so that the parties and X could then travel to each of them and make an assessment. A similar approach had been taken to selecting and enrolling Y in a secondary school that was at a midpoint between the parties’ homes. In X’s case, the suggestion was never taken up.
The impression I formed was that the applicant mother has merely capitulated to X’s views that her secondary education should be at (omitted) High School and that nothing else was open to discussion.
The applicant enrolled X at (omitted) High School and did so without the respondent’s consent and deliberately refrained from ticking the box whereby that school would be informed of the parties’ extant operative consent orders made in 2008. It was unsurprising that, in those circumstances, the respondent would, upon disclosure being made, inform that school that he did not consent to the enrolment.
On Christmas eve, the applicant filed the present application and, being refused an abridgment, sought the review of that decision. Notwithstanding the supposed urgency of the matter, neither the applicant nor the respondent appeared on the application for review. Having failed to deal with X’s enrolment for many months, the parties seemed to prefer that they abdicate the decision to the court. The court was unable to accommodate the urgent application until 5 February 2018, by which time the first term of secondary school had commenced. As a result, X is still not enrolled in secondary school.
X’s intransigence was identified by Dr R’s report as being due in significant parts as a response to family conflict in, and failure of, the applicant’s second marriage, combined with X’s response to the father’s remarriage. Dr R recommended counselling.
I do not know whether X’s circumstances were more or less turbulent in 2017 than they had been in 2016. However, there is evidence which presents the respondent’s domestic circumstances as being settled and stable. I consider that X’s continued access to that environment provides an important context to this schooling decision. It is in the respondent’s home environment that X’s schoolwork is supervised and the respondent is actively involved in her extracurricular sporting and other activities. I have described the steps taken by the respondent to address X’s psychological issues, his attendance on each of the six occasions when X obtained counselling and the manner of the applicant’s response to this issue.
Parenting is not to be undertaken merely by capitulating to the wishes of a young preadolescent child. The evidence in this case makes plain that both parties recognised that they needed to confront a difficult decision. They seemed to have been able to do so with the elder child, Y, who has been settled in a school that is located at a midpoint between the two parties respective homes.
The reality of modern day education is that not all children are able to merely walk to the local suburban High School. Whether or not their parents have separated, many children take public transport on a daily basis to attend their school. While it is clear that X will need to be delivered to and collected from high school for some time, equally, she will soon be old enough to travel by public transport.
I do not consider that the consequence of attending (omitted) School will deny X the opportunity to remain connected with her peer group. The classroom of children completing primary school will inevitably move to a variety of different secondary schools. Children who have had the benefit of attending a local primary school may retain many friendships from that primary school. As the applicant observed in relation to Y’s secondary schooling, the parties’ children ‘will make friends wherever they go; they are very social.’
The material filed in this case informs why the parties have been unable to engage properly upon a path to resolving the issue of the X’s schooling. Having recognised since at least late 2016 that the issue of X’s schooling was an increasingly pressing issue, the parties failed to engage effectively in seeking to resolve that issue. As the impasse continued, the matter was then left until far too late. X has now missed her entry into secondary school – an opportunity which cannot now be replaced. This has only exacerbated the position.
I have concluded that it is in the best interests of X that she should be enrolled to commence her secondary education at (omitted) School, (omitted). The parties have agreed to parenting orders that have worked well for nearly a decade. Those consent orders provided for X to spend time with each of her parents in alternate weeks. (omitted) School is situated at a near midpoint between the parties’ residences. It is not appropriate to consider this urgent application from the perspective that either parties’ respective home is the principal residence of the child.
I consider it important in the present context that X continue to have the parenting of both of her parents and that they should undertake that responsibility more actively than has been the case on this issue. It is also important that the parents undertake a post separation parenting program and attend reportable family therapy. I expect that the parents will also consider and implement the recommendation of Dr R that the child undertake further psychological counselling: see paras 69ZQ(1)(f)-(g) of the Act.
I certify that the preceding one-hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 13 February 2018
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